A shipping association submitted a public records request for a pilot log from the port agent of the Board of Pilot Commissioners for the Bays of San Francisco, San Pablo, and Suisun (“Board”). The port agent, who is a public officer for certain purposes, also serves as president of the San Francisco Bar Pilots, which is a private unincorporated association. The court of appeal held that the shipping association failed to establish the requested records are public records that are subject to the California Public Records Act (“CPRA”). (The Board of Pilot Commissioners for the Bays of San Francisco, San Pablo, and Suisun v. The Superior Court of the City and County of San Francisco (— Cal.Rptr.3d —-, Cal.App. 1 Dist., August 1, 2013).
Facts
The Pacific Merchant Shipping Association (“PMSA”), a private maritime trade association, filed a request under the CPRA for records it alleged were held by Captain Bruce Horton (“Horton”), who was the designated Port Agent for the Board. The Board licenses and regulates pilots who have exclusive authority to pilot vessels. The Board’s members are appointed by the Governor subject to the consent of the Senate. The San Francisco Bar Pilots (“Bar Pilots”) is a private unincorporated association of pilots who are licensed by the Board. Piloting services are both “compulsory and monopolistic” and fees for such services are mostly set by statute.
The Port Agent is a licensed pilot who, subject to confirmation of the Board, is appointed by the majority of all licensed pilots. It is the job of the Port Agent to carry out the Board’s orders and administer the pilots’ affairs. Although the Port Agent is not a member or officer of the Board and receives no compensation from the Board, he has certain reporting obligations to the Board.
PMSA requested documents it identified as “Pilot Logs” from the Port Agent and the Board. It defined a “Pilot Log” as “a document created under the direction of the Port Agent as a memorialization of all pilot assignments to vessels made pursuant to the Port Agent’s duties under [California Code of Regulations]” that “reflects the administration of pilot vacation schedules.” PMSA requested Pilot Logs for the years 2002 through 2011 for each pilot.
Horton responded to the request by stating that “[t]here is no document maintained by the Port Agent named the ‘Pilot Log.’” Horton informed PMSA of “a data set that bears headings that are similar to those set forth” in PMSA’s request. However, that data “is not used by the Port Agent in assigning pilots to vessels or in preparing or administering the pilots’ vacation schedule, nor are they supplied to [the Board].” Horton stated that the documents that contain this data are maintained by the Bar Pilots “in its capacity as a private organization and not in connection with any duties imposed upon the Port Agent by statute or by the regulations of [the Board].” Horton asserted the documents are not subject to disclosure under the CPRA. The Attorney General informed PMSA that the documents it sought were not in the Board’s possession.
PMSA filed a petition for writ of mandate asking the trial court to direct the Board and the Port Agent to comply with its CPRA request. Horton declared under penalty of perjury “[t]he Bar Pilots do not maintain any record or records entitled ‘Pilot Log’ and have not done so at any time during [his] membership.” He claimed that, although the Bar Pilots have maintained “a dataset that includes some of the types of information PMSA apparently seeks through its requests for ‘Pilot Logs,’” he does not use the dataset in performing his duties and it is not provided to the Board or the public. The trial court granted the writ in part finding that a Port Agent is a public official because the position was created by the Legislature.
Decision
The CPRA mandates the inspection of public records that are maintained by state and local agencies. The Board is a state agency. However, the Board and Bar Pilots argued that the Port Agent is not a state officer because he is not an officer of the Board and he is compensated by the Bar Pilots, a private association. The Port Agent position was created by the Legislature and has both private and public duties. He has responsibilities imposed by statute and regulation. The court concluded “that the Port Agent must be considered a state officer, at least when performing the official duties provided by statute or Board regulation.”
The next issue before the court was whether Pilot Logs are public records. Under the CPRA, a public record is “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” The fact that the Port Agent may act as a public officer while performing certain “duties does not mean that every record in his possession or control thereby becomes a public document subject to the CPRA.” Bar Pilots is not a public agency and private nongovernmental records are not subject to disclosure under the CPRA. The fact that a public officer possesses a document does not make it a public record.
The Port Agent admitted that some or all of the information existed but that it was owned and used by Bar Pilots. The court found there was no evidence that the information was possessed or used by the Port Agent during the performance of his official duties. In the absence of evidence that the Port Agent used the Pilot Logs in execution of his public duties, the Pilot Logs cannot be considered public records pursuant to the CPRA.
The PMSA asserted that because the Board and Port Agent have a right to control the Pilot Log database, they are in “possession” of the records sought by the PMSA. Even if a record was in actual or constructive possession of a public official, it is not subject to the CPRA unless it was “required by law to be kept by that official,” or it was “necessary or convenient to the discharge of his official duty.” PMSA must show that the files are public records and that they were in possession of the Board. They failed to meet this burden. The Pilot Log data was not used by the Port Agent in performance of his official duty and therefore it was not a public record and was not subject to disclosure under the CPRA.
Questions
If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.
Mona G. Ebrahimi | 916.321.4500